The Parentage Disruption: A Comparative Approach

2019 ◽  
Vol 33 (3) ◽  
pp. 316-336
Author(s):  
Guillaume Kessler
Keyword(s):  
Romantic Relationship ◽  
Reproductive Technologies ◽  
Best Interests ◽  
Comparative Approach ◽  
Same Sex ◽  
Cultural Shift ◽  
The Right To Know ◽  
The Status ◽  
The Right

Abstract The bionormative and heteronormative models of parentage has been challenged by multiple factors: a cultural shift, which has led to the decline of marriage and the development of cohabitation, a technological evolution, which has made it possible to develop new reproductive technologies, and a legal change that has led to the recognition of same-sex relationships. However, the extent of this development has not yet been fully assessed. Rather than simply adapting the rules designed according to an outdated model, it would be better to break with it permanently. This article proposes to build a new system based on intent and care, on the basis of case law and doctrinal proposals from several countries. Drawing from the best interests of the child standard, it operates a distinction between the status of parent and progenitor: whatever the circumstances of the birth (natural procreation, adoption, assisted reproduction technology, or surrogacy) and the nature of the parents' relationship (same-sex or heterosexual, married or unmarried, engaged in a romantic relationship or not), parentage would be based on a formal statement and the question of genetics limited to the determination of identity and the right to know one's origins.

scholarly journals Human Rights and the Same-Sex Marriage Debate in Australia

2017 ◽  
Vol 10 (4) ◽  
pp. 60
Author(s):  
Bede Harris
Keyword(s):  
Human Rights ◽  
John Rawls ◽  
The United States ◽  
Comparative Approach ◽  
Heterosexual Couples ◽  
Same Sex ◽  
Political Debate ◽  
Same Sex Marriage ◽  
Goods And Services ◽  
The Right

Australia is currently confronting the issue of whether to legalise same-sex marriage. Thus far debate has been conducted with little reference to human rights theory. This article draws on the theories of John Rawls and John Stuart Mill and analyses whether, by confining the right to marry to heterosexual couples, the law infringes the right to privacy and, conversely, whether the legalisation of same-sex marriage would infringe religious rights of those who are unwilling to provide goods and services to same-sex couples. In so doing, the article adopts a comparative approach, drawing on case law from the United States. The article examines the way in which political debate on the issue has been conducted by the major parties in Australia, and concludes that both the Liberal-National coalition and the Labor party have been motivated by a desire to appease the religious right within their ranks, at the expense of human rights principles.

Anak Angkat Sebagai Penghalang Penetapan Ahli Warits Perspektif Maqasid Syariah ( Analisis Terhadap Putusan Hakim Pengadilan Agama Pekanbaru Klas 1 No. 181/Pdt.P/2020/PA.Pbr )

2021 ◽  
Vol 7 (2) ◽  
pp. 169-188
Author(s):  
Muh Rizki
Keyword(s):  
Secondary Data ◽  
Adoptive Parents ◽  
Best Interests ◽  
Court Order ◽  
Adopted Child ◽  
Library Research ◽  
Child Adoption ◽  
The Republic ◽  
The Right

Abstrak. Di Indonesia pengangkatan anak/adopsi diatur dalam Undang-undang Republik Indonesia Nomor 23 tahun 2020 perihal pengangkatan anak, di dalam pasal 39 poin 1 dijelaskan, dalam hal ini pengangkatan anak hanya dapat dilakukan berdasarkan kepentingan yang terbaik bagi anak dan dapat dilakukan dengan ketentuan adat setempat dan ketentuan peraturan yang berlaku. Hal ini agar pengangkatan anak tidak terjadi kesalah fahaman atau pertikaian di belakang hari, terlebih-lebih apabila orang tua angkatnya meninggal dunia lebih dulu. Sebagaimana dalam putusan hakim Pengadilan Agama Pekanbaru klas 1A Nomor. 181/Pdt.P/2020/PA.Pbr, tentang penetapan ahli warits.  Majelis Hakim Pengadilan Agama Pekanbaru menolak penetapan ahli warits disebabkan adanya anak angkat, meskipun tidak ada bukti yang menunjukkan adanya penetapan pengadilan atau secara adat tentang pengangkatan anak tersebut. Berdasarkan uraian ini, maka penulis merasa perlu menganalisis dari asfek yuridis dan filososfis untuk menemukan jawaban mengapa permohonan penetapan ahli warits ini ditolak, dan apa dasar hukum hakim yang digunakan serta bagaimana putusan ini jika dianalisis dengan konsep maqasid syariah. Jenis penelitian dalam tulisan ini adalah penelitian pustaka (library reseach), yaitu penelitian hukum yang dilakukan dengan cara meneliti bahan pustaka atau data sekunder belaka dengan menggunakan pendekatan hukum normatif dan pilosofis. Adapun kesimpulannya, bahwa anak angkat sangat punya kepentingan terhadap harta tirkah dari alamarhumah, karena para pemohon tidak memasukkan anak angkat sebagai orang yang berhak sebagai pihak dalam perkara aquo, majelis hakim berpendapat permohonan para Pemohon kurang pihak. Maka pertimbangan majelis hakim dengan menggunakan kaedah “Menolak mafsadah didahulukan daripada mengambil kemaslahatan”. Apabila dianalisis perkara ini dengan pisau analisis maqasid syariah  yang sesuai dengan prinsip maqasid syariah dan terhimpun dalam empat kulliyatul khams sekaligus, yakni memelihara agama (hifz ad-din), memelihara jiwa (hifz an-nafs), memelihar akal (hifz al-aql dan memelihara harta (hifz al-mal). Abstract. In Indonesia, adoption/adoption is regulated in the Law of the Republic of Indonesia Number 23 of 2020 regarding child adoption, in article 39 point 1 it is explained, in this case the adoption can only be carried out based on the best interests of the child and can be carried out with local customary provisions and applicable regulations. This is so that the adoption of a child does not cause misunderstandings or disputes later in life, especially if the adoptive parents die first. As in the decision of the Pekanbaru Religious Court class 1A No. 181/Pdt.P/2020/PA.Pbr, regarding the determination of heirs. The Pekanbaru Religious Court Panel of Judges rejected the determination of heirs due to the presence of an adopted child, although there is no evidence to show that there was a court order or custom regarding the adoption of the child. Based on this description, the author feels the need to analyze from the juridical and philosophical aspects to find answers to why the application for the determination of heirs was rejected, and what is the legal basis of the judge used and how this decision is analyzed with the concept of maqasid sharia. The type of research in this paper is library research, namely legal research carried out by examining library materials or secondary data using normative and philosophical legal approaches. As for the conclusion, that the adopted child is very interested in the tirkah property of the alamarhumah, because the petitioners do not include the adopted child as a person who has the right as a party in the aquo case, the panel of judges is of the opinion that the petition of the petitioners is lacking in parties. Then the consideration of the panel of judges using the method "Rejecting mafsadah takes precedence over taking benefit". When analyzed this case with a maqasid sharia analysis knife which is in accordance with the principles of maqasid sharia and is compiled in four kulliyatul khams at once, namely maintaining religion (hifz ad-din), preserving soul (hifz an-nafs), preserving reason (hifz al-aql and maintain property (hifz al-mal).

Implementation of the Right to Inheritance: Problems of Theory and Practice

2021 ◽  
Vol 10 (1-2) ◽  
pp. 203-220
Author(s):  
Svitlana S. Bychkova ◽  
Nataliia V. Bilianska ◽  
Tetiana R. Fedosieieva
Keyword(s):  
Assisted Reproductive Technologies ◽  
Reproductive Technologies ◽  
Civil Code ◽  
Theory And Practice ◽  
The Status ◽  
The Will ◽  
The Right

Abstract The article is devoted to the research into problematic aspects of exercising the right of inheritance by different categories of entities. As a result of the research conducted, recommendations for improvements to Ukrainian legislation have been developed. The status of a child born after 10 months and as a result of the use of assisted reproductive technologies after the death of one spouse should be determined at the legislative level. It also would be expedient in the Civil Code of Ukraine to fix the testator’s rights to settle the issue of birth of his children in the will through the use of assisted reproductive technologies after his death and to appoint such children as heirs. In addition, the Civil Code of Ukraine should provide for the possibility of individuals recognised as missing, to be heirs, and to secure the right to have a guardian over the property of such persons.

scholarly journals Consent to the Use of Artificial Reproduction and its Legal Significance for Establishing the Origin of the Child

Lex Russica ◽  
2020 ◽  
pp. 21-31
Author(s):  
D. A. Belova
Keyword(s):  
Legal Status ◽  
Assisted Reproductive Technologies ◽  
Legal Aspect ◽  
Reproductive Technologies ◽  
Legal Regulation ◽  
Best Interests ◽  
Artificial Reproduction ◽  
Legal Information ◽  
The Status ◽  
The Will

The paper is devoted to the study of problems related to the establishment of the origin of children born as a result of artificial fertilization in the comparative legal aspect. It is noted that the principles laid down as the basis of the rules governing the order of the child’s origin vary significantly depending on whether it is a matter of natural or artificial reproduction. In the case of assisted reproductive technologies (ART), the value of blood (genetic, biological) kinship is leveled, and its substituted by the will of the person to acquire parental rights and obligations with regard to the child. A person’s will to become a child’s parent is expressed before the child is born in a written permission to use the ART. It is noted that the absence of normative rules regulating the order of expression of consent and conditions of its validity is an obvious gap in the legal regulation of the ART application. It is proposed to treat consent as informed consent if the person applying for the use of ART is provided not only medical but also legal information concerning the legal status of the person participating in the ART program and the legal implications of such participation. The author investigates requirements applied to mutual consent and voluntary consent, its substantive and revocable nature, as well as inadmissibility of representation when expressing the will to use the ART. The author argues that the will to acquire the status of a parent should be expressed in a separate document describing the content of the will and verified by the notary. In order to ensure the best interests of the child in parental care, it is proposed to impose statutory restrictions on the free will to apply the ART.

scholarly journals Origin, establishment and development of the idea of self-determination of peoples

2021 ◽  
pp. 60-73
Author(s):  
Azer Kagraman Ogly Kagramanov
Keyword(s):  
International Relations ◽  
International Law ◽  
Self Determination ◽  
Modern World ◽  
Territorial Integrity ◽  
The World ◽  
The Status ◽  
The Subject ◽  
The Right

The subject of this research is the examination of evolution of the idea of self-determination of peoples based on the fundamental works of the Russian and foreign scholars, thinkers of the antiquity and modernity. The author considers the transformations experienced by the principle of self-determination at various historical stages of development; as well as builds a corresponding systems of the development cycles. The conclusion is made that after conception of the idea of self-determination, the colonial powers viewed this concept as ethical, seeing the threat to legitimacy of the established order. Therefore, throughout almost a century, the leading countries refused to include this right into the corresponding international and domestic documents. The main conclusions are as follows: after consolidation of the principle in the Charter of the United Nations, it became the foundation for the emergence of news states and destruction of the colonial world; the principle served as a leitmotif for the development of human rights and international relations, but at the same time became a threat and challenge to the territorial integrity; wars between the countries are replaced with the civil and interethnic conflicts; the world is captured with such phenomena as state nationalism that subsequently grew into extremely radical forms, such as fascism and Nazism; the modern international law actively promotes the two competing principles – territorial integrity and self-determination; in modern world, the right to self-determination is not limited by peoples under the colonial past – there occur new forms of self-determination that threaten the existence of sovereign states. Uncertainty of the status of the newly emerged states formations serves as the source of domestic and international tension, which inevitably leads to intergovernmental clashes and negatively impacts geopolitical situation in separate regions and in the world as a whole.

scholarly journals Divorce Reform in Canada: New Perspectives; An Analytical Review of Bill C-10 (Canada), 1984

2019 ◽  
Vol 15 (2) ◽  
pp. 359-383
Author(s):  
Julien D. Payne
Keyword(s):  
Third Party ◽  
Best Interests ◽  
Legal Process ◽  
Open Court ◽  
Analytical Review ◽  
Major Reform ◽  
The Law ◽  
One Year ◽  
The Right

Bill C-10 (Canada), 1984 is entitled An Act to Amend the Divorce Act (R.S.C., 1970, c. 10). In reality, however, the fundamental character of some of the changes proposed therein constitutes a major reform of substantive divorce law and provides a limited foundation for radical changes in the adversarial legal process. The concept of “no-fault” divorce that was proposed by the Law Reform Commission of Canada in its Working Papers and Report on Family Law constitutes the basis of Bill C-10 with regard to the freedom to divorce and the judicial determination of the right to and quantum of spousal maintenance. But Bill C-10 provides little by way of a framework for the implementation of the Law Commission's recommendations for new processes that would ameliorate the injurious effects of the adversarial legal process. For example, the use of mediation as an alternative to the litigation of disputed issues is endorsed in clauses 5 and 16 of Bill C-10, but these clauses, and particularly clause 5, are badly drafted and are unlikely to foster mediated settlements where either lawyer representing the parties is intent on a battle in open court. Bill C-10 introduces much-needed policy objectives to assist the courts in determining whether spousal maintenance should be ordered on the dissolution of the marriage. Here again, however, the drafting is less precise than might be considered appropriate. The “best interests of the child” is declared to be the paramount criterion in applications for the maintenance, custody, care and upbringing of children, but no specific guidelines are provided with respect to the factors that might be relevant to a determination of a child's best interests. Joint custody orders and third party orders are expressly permitted, but not expressly encouraged, by clause 10 of Bill C-10. The jurisdictional requirements of section 5 (1) of the Divorce Act, R.S.C. 1970, c. D-8 have been simplified by clause 3 of Bill C-10, which retains only the one year ordinary residence requirement. Corresponding adjustments have been made to section 6 of the Divorce Act, which governs the recognition of foreign divorce decrees. Bill C-10 (Canada), 1984 thus constitutes a blending of the old and new. Whether this blend produces vintage wine or vinegar is a matter of opinion.

scholarly journals Mineralogical studies of amphibolite outcrops within the Kryvyi Rih Basin

2020 ◽  
Vol 29 (1) ◽  
pp. 188-195
Author(s):  
Svitlana V. Tikhlivets ◽  
Valeriy D. Yevtiehov ◽  
Valentyna V. Filenko ◽  
Olena Y. Hrytsai
Keyword(s):  
Iron Ore ◽  
Regional Metamorphism ◽  
Mineralogical Composition ◽  
Laboratory Studies ◽  
Petrographic Analyses ◽  
The Status ◽  
The Right ◽  
Geological Observation ◽  
Selection Of

This study explores the mineralogical composition of the material of samples extracted from the outcrops of amphibolites located within the Kryvyi Rih Basin. Amphibolites of the Novokryvorizka suite of the Kryvorizka series are located in the area of Rodina mine of the Kryvyi Rih Iron Ore Enterprise (KRIOE) on the right bank of the Saksahan river, where the amphibolites crop out as an interrupted line. Over the recent years, industrial and geological tourism has been actively developing not only within Kryvyi Rih, but also in Ukraine in general. The Kryvyi Rih Basin has many objects which deserve the status of unique geological observation sites. One such site has amphibolites of the Novokryvorizka series, which rarely outcrop to the surface. Such an object is interesting and useful not only for interested tourists, but especially for geology students as an example of rocks that have been formed out of effusive eruption products during the geological process such as regional metamorphism. No other examples of their exposure have been observed in the area. The studied outcrops are unique, but recently, their reduction has been observed due to the poor level of their preservation. The relevance of this study is conditioned by necessity of conducting geological evaluation of the amphibolite outcrops with a view to the future use of this object for development of industrial and geological tourism within the Kryvyi Rih Basin. We studied all possible outcrops of the amphibolites within the surveyed territory, and analyzed the results of the previous studies on the topic. We developed a schematic image of the outcrops with consideration of their thicknesses. The mineralogical composition of all outcrops of the amphibolites was studied for further determination of the exact age of the amphibolites and opportunity of providing the amphibolite outcrops with the status of unique observation sites. For achieving the goal, we used the following methods of study: geological survey, selection of representative petrographic samples of the amphibolites, mineralogical and petrographic analyses, generalization of results of field and laboratory studies.

The Lost Children: When the Right to Children Conflicts with the Rights of Children

2014 ◽  
Vol 8 (2) ◽  
pp. 219-270 ◽  
Author(s):  
Pamela Laufer-Ukeles
Keyword(s):  
Civil Rights ◽  
Assisted Reproductive Technologies ◽  
Reproductive Technologies ◽  
Best Interests ◽  
Narrow View ◽  
Failure To Protect ◽  
Best Interests Standard ◽  
The Right ◽  
The Cost ◽  
Children's Interests

Abstract In this essay, I consider the tension between the drive toward the use of assisted reproductive technologies (ART) and the state’s failure to protect interests of children born of ART. I ask the question whether ART should be regulated for the sake of future children’s interests. Taking a narrow view of rights, this essay argues that despite the considerable obstacles posed by Derek Parfit’s non-identity problem and the ambiguity surrounding how to optimize and identify what is “best” for children under the “best interests” standard, there are still basic civil rights of children born of ART that must be ensured in ART regulation. Therefore, regulation of ART for the sake of children is justifiable and necessary but in a limited manner. To demonstrate how conflict can arise between the use of ART and the basic rights of children born of ART I first turn to the example of Israel where the use of ART can affect the resulting child’s personal status, which can affect a person’s ability to marry. This tension is particularly stark in Israel, where procreative support from the state is extreme, and relatively easy fixes could relieve much of the problem. But, the same tension plays out in other nations in which the use of ART leads to the creation of children whose basic needs are not sufficiently addressed. In particular, I discuss the lack of access to health information from gamete donors in the U.S. and the failure to provide citizenship and legal parenthood to children born of international surrogates in a number of other countries. I argue that while procreation is a valid goal it cannot come at the cost of the social and basic civil rights of children. State policy and laws must ensure that children born of ART will be full citizens upon their birth. In sum, regulating ART can be justified for the sake of future children but I suggest that such regulation be drawn narrowly and only to ensure children’s basic civil rights.

CONCEPT OF PATIENT’S ADVANCE EXPRESSED WILL

2019 ◽  
pp. 282
Author(s):  
Dagnija Volodjko
Keyword(s):  
Self Determination ◽  
Best Interests ◽  
Right To Know ◽  
State Of Health ◽  
The Right To Know ◽  
The Right ◽  
Medical Examinations ◽  
Insight Into ◽  
The Way

The patient may be found in a situation where he can no longer make decisions because of an accident or illness. It is considered that the decision on treatment admit in the best interests of the patient, but without certain written instructions it is almost impossible. The patient's advance expressed will is the way in which any person can express the exact wishes of treatment for particular situations at a time when patient can’t made the decision. There is a need to respect to the principle of self-determination, where the patient has the right to know all the information about his state of health and he can determine in what situations he agrees or prohibits certain medical examinations, treatments or interventions. In Latvia, the idea of the patient's advance expressed will has been not many research and not implemented, so the work gives an insight into the concept and content of the patient's advance expressed will.

Part II The Right to Know, B Commissions of Inquiry, Principle 6 The Establishment and Role of Truth Commissions

2018 ◽  
Author(s):  
Nuzov Ilya ◽  
Freeman Mark
Keyword(s):  
Theoretical Framework ◽  
Truth Commissions ◽  
Truth Commission ◽  
Right To Know ◽  
The Right To Know ◽  
Commissions Of Inquiry ◽  
The Right

Principle 6 is concerned with the establishment and role of truth commissions, outlined in two paragraphs. The Principle recommends criteria that can be applied ‘to the greatest extent possible’. The first paragraph encompasses three different aspects of the issue: the preliminary ‘decision to establish a truth commission’, the subsequent creation of its ‘terms of reference’, and the related determination of its ‘composition’. In the second paragraph, the term ‘role’ refers to the functional end-goal that a commission is expected to serve: ‘securing recognition of such parts of the truth as were formerly denied’. After providing a historical and contextual background on Principle 6, this chapter discusses its theoretical framework and the ways in which the Principle is exercised in practice.

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